Website & Social Media Archiving for New Hampshire State Agencies

Open Records in New Hampshire
New Hampshire’s Right to Know Law (R.S.A. Ch. 01-A et seq.) governs all social media and open records in the state of New Hampshire. This legislation, founded on the principles of freedom of speech and liberty, indicates that all “citizens” have a right to access New Hampshire’s records. New Hampshire Open Meetings Law R.S.A. Ch. 91-A et seq. also provides provisions on the disclosure of public records to the public.

How New Hampshire Defines a Public Record
According to the Right to Know Law:

“Governmental records” means any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function. Without limiting the foregoing, the term “governmental records” includes any written communication or other information, whether in paper, electronic, or other physical form, received by a quorum or majority of a public body in furtherance of its official function, whether at a meeting or outside a meeting of the body. The term “governmental records” shall also include the term “public records.”

The scope of New Hampshire statute extends to many different forms of content, as in its’ wording, “Information” means knowledge, opinions, facts, or data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic, or other physical form. Subject to the open and inclusive nature of these laws, social media and website postings would be included in this definition – the content of the posting would determine whether it would have to be disclosed. Municipal websites may be used as one of the two places for publicly posting notice of meetings.

Subject to the open and inclusive nature of these laws, social media and website postings would be included in this definition – the content of the posting would determine whether it would have to be disclosed. Municipal websites may be used as one of the two places for publicly posting notice of meetings.

Social Media Guidance Documents
Guidance on social media use and recordkeeping has been provided by the New Hampshire State Attorney General in a 2015 updated Memorandum on New Hampshire’s Right-to-Know Law:

A. What is a Governmental Record?

“Governmental records” means any information created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function. Without limiting the foregoing, the term “governmental records” includes any written communication or other information, whether in paper, electronic, or other physical form, received by a quorum or majority of a public body in furtherance of its official function, whether at a meeting or outside a meeting of the body. The term “governmental records” also shall include the term “public records.” RSA 91-A:1-a, III.

Governmental records that are provided electronically may contain metadata that could be accessible to the requesting party. Metadata is data imbedded in electronic documents and can include information such as your organization and/or computer name, comments, template information, hidden text or cells, the name of the network server or hard disk where the document is saved, and the names of previous document authors. New Hampshire Courts have not ruled on whether such information is subject to disclosure under RSA 91-A. At least one Federal District Court has determined that, with respect to the Freedom of Information Act, certain metadata is an intrinsic part of an electronic record and that “metadata maintained by the agency as part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not ‘readily producible.’” National Day Laborer Organizing Network, et al., Plaintiffs, v. United States Immigration and Customs Enforcement Agency, et al., Defendants, No. 10 Civ. 3488 (SAS). Questions about metadata should be reviewed with legal counsel.

Given the proliferation of electronic records, public bodies and public agencies should review the following with legal counsel: their computer, e-mail, instant message, phone and other system use; the sections of their employee handbooks covering e-mail, instant message, phone and web usage, including but not limited to social media usage such as Twitter, YouTube, Facebook; and record retention policies and practices.

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